FAMILY LAW RESOURCES
Please note that the following is for information purposes and is not purported to be legal advice in any way whatsoever. Should you have a family law or child protection matter, please contact our office or speak to a family law lawyer to obtain proper legal advice as it relates to your situation.
Custody is all about decision making authority. The parent who has custody gets to decide solely on issues affecting the child(ren), such as: what school they will attend, what doctor or other health care provider they will see, their religion instruction and welfare. While in most cases the parent with custody is the one that has primary residence of the child, this is sometimes not the case – custody is not necessarily related to where a child lives. Custody is about which parent will have decision making authority over the child(ren). In highly disputed custody and access cases, the courts may appoint a lawyer to represent the interests of the child(ren). This is done through the Office of the Children’s Lawyer and is known more generally in the family courts as an OCL.
Parents who have joint custody of their children share the right to make decisions about their care. The children may spend half the time with one parent and half the time with the other. Both parents remain involved in making decisions about the children. Joint custody only works when separated parents are able to communicate with each other about their child(ren) and come to agreements despite their differences and the breakdown in their relationship.
If you do not have custody of your children, you have a right to spend time with them unless the court decides that this is not in their best interests. Access arrangements can be written out in detail in a parenting plan, separation agreement or court order. The plan, agreement or order could say that the children would be with you every other weekend and on certain holidays (i.e., Mother’s day/Father’s day, holidays, etc.). Access agreements can be very flexible as well. In most cases, an access parent will have full rights to information about their children, including their health, education and welfare. There are some access parents that also have limited rights over certain types of decisions for their children (however this is not common and every case is unique).
Both parents have a responsibility to financially support their children. They share this responsibility when they are living together and continue to share it after they separate. This responsibility applies to all parents, regardless of whether they were married, living together or have never lived together. The parent with primary residence of the children has to take care of them, buy them food and clothes for them, pay for outings and activities, look after all their day-to-day needs and keep the home running. The Access parent usually has to pay the parent with custody money to help cover the costs of taking care of the children. This payment is called child support. The amount of child support to be paid in Ontario is set out under the Child Support Guidelines and is based on the income of the person who does not have primary residence of the children. In rare cases, a court can award less than the guideline amount where paying the amount would cause undue hardship to the payer. The person paying support usually must provide yearly updated financial information to the support recipient.
The law views spousal relationships as economic partnerships and when the partnership break down the person with more money may have to support the other. There is no black and white answer as to how much spousal support one spouse will pay the other. Every case is unique and is decided upon based on the unique facts of every case. The law states that Judges must look at how much the person asking for support needs to live, and how much the other person can pay. Generally, a short marriage will not warrant a large amount of spousal support, whereas a longer one will. Again, there are no simple answers when it comes to spousal support. Factors taken into consideration include, the age and health of the couple, available employment opportunities, the effect that being married had on the employment opportunities of the couple, contribution to family care during the marriage, the contribution made to the other’s career, the time it will take for the person to become self-sufficient, and the need to stay at home to take care of young children or adult children with a disability. If you can agree on the amount of support that will be paid and for how long it will be paid, then you can include this in your separation agreement.
To legally end your marriage you must get a divorce. Some people think that being separated and living apart ends their marriage, but this is not true. You must be legally divorced before you can marry again. The only reason you need for a divorce to occur is a marriage breakdown. The law accepts that there has been a breakdown of your marriage if you can prove that you and your spouse have lived separate and apart for at least 1 year, without living together in that one year period for more than 90 days. It is not necessary that both spouses want a divorce in order for a divorce to be granted. If one spouse wants a divorce, then they can apply unilaterally. Either spouse can apply for a divorce, or it can be done jointly. There are no time limits after the 1 year separation period to apply for a divorce.
DIVISION OF MATRIMONIAL PROPERTY (Net Family Property Equalization):
The law says that married spouses share responsibility for childcare, household management and earning income during their marriage. According to the law, marriage is an equal partnership. When a marriage ends, the partnership is over and property has to be divided. To recognize the equal contribution of each person, the general rule is that the value of any property that you acquired during your marriage and that you still have when you separate must be divided equally, 50-50. Property that you brought with you into your marriage is yours to keep if your marriage ends. Any increase in the value of this property during your marriage must be shared. The value of the family home, otherwise known as the matrimonial home, must be shared even if one of you owned the home before you were married. There are exceptions to the division of property which include gifts received during your marriage from someone other than your spouse, property that you inherited during your marriage, insurance proceeds because someone died and settlement funds as a result of a personal injury such as a car accident. You and your spouse can agree to a different split, or in some cases you can ask the court to divide things differently.
When a married couple is separated, are not living together and there is no chance of reconciliation, they can organize their relationship in a way that is amicable and agreeable to them both. Like a temporary or final court order, a separation agreement can provide for temporary or final conditions and terms that govern the family affairs of the couple whose relationship has broken-down. Issues such as custody, access, child support, spousal support and matrimonial property can all be dealt with in a separation agreement. A separation agreement must be signed by both spouses in front of a witness for it to be legal. Independent legal advice (ILA) is highly recommended to bind a separation agreement. A final separation can be varied in the future in the same way as a final court order can be.
INDEPENDENT LEGAL ADVICE:
Independent Legal Advice is required to solidify and bind a separation agreement. Each party to a separation agreement is entitled to receive independent legal advice from a lawyer who would advise him/her as to their legal rights in law and in application of those rights to the agreement. A party signing the agreement without obtaining independent legal advice could potentially bring the final agreement under review in a court of law. An unrepresented spouse could always then argue that they were not aware what their rights were. Independent legal advice provides legal validity to a separation agreement and is always highly recommended.
ANSWER AND PLANS OF CARE:
In a child protection case, a parent or person proposing a plan for the child is required to submit an answer and plan of care. This answer and plan of care is usually submitted in a special family court proceeding launched by the Children’s Aid Society of the corresponding region with respect to child protection concerns. The answer and plan of care is in response to a protection application and will lay out the proposed plan by the parent or person who is a party to the proceeding and who is seeking custody of the child. Individuals other than parents can become parties to a proceeding by way of a special motion seeking the court’s permission to add them as parties. If they are successful at such a motion, they will become parties to the proceeding. In addition to proposing a detailed plan for the care of a child who is involved in a child protection case, an answer and plan of care allows for detailed responses to any allegations raised by a child protection agency. Answers and plans of care are pleadings and are not evidence but the family court and child protection agencies consider them extremely important in child protection cases. Child protection law, under the Child and Family Services Act will always look to determine the best interests of a child as the number one important factor in concluding what the best plan for a child is.
In a child protection case, should a child be found in need of protection (a finding), then there are multiple dispositions that can be made, either on a temporary or final basis. With a supervision order, the child is left with the parents or caregiver, but the Children’s Aid Society is still involved in the family life and is supervising. Typically a supervision order consists of terms that the parents allow the Children’s Aid Society unannounced visits to their home, go for drug testing and complete a treatment program or attend counselling to name a few. A supervision order in a child protection case is usually one of the least onerous outcomes that can occur and should be welcomed in serious child protection matters.
It has been held that a crown wardship order is the most profound order that a court of law can make. When children are made crown wards they can be legally adopted. The state government, in this case, the Ontario government has final legal custody over your child. Crown wardship is a final order. A finding that a child is in need of protection is the first test that must be met before a crown wardship order can be made. Crown wardship is a disposition after a finding of protection is made. In a child protection case, a crown wardship order could occur after a child has been in foster care for 1 year or more when under 6 years old and 2 years or more when over the age of 6. In most child protection cases where a children’s aid society is seeking an order for crown wardship over a parent’s child(ren), the parent will be represented by legal counsel as the stakes are extremely high. Generally, crown wardship orders are made for the purpose of adoption, without any access. Some crown wardship cases can be reopened by way of a status review if access has been ordered. Access will only be ordered with a crown wardship order if the parent can show that the access would be beneficial and meaningful to a child and in their best interests – historically, this has been an extremely difficult legal test for the parent to overcome. Usually in these cases, the office of the Children’s Lawyer appoints a lawyer to represent the interests of the child(ren) – otherwise referred to as an OCL.
Generally speaking, society wardship orders are temporary. Even though there can be a final order of society wardship say for a three or six month period, ultimately, the matter comes back to court on a status review. There are orders where children who were apprehended from their parents under the Child and Family Services Act are temporary placed in foster care until the children can be removed from care and placed with kin or back to their parents. There are also cases where unfortunately the parents cannot present a viable plan and the children remain society wards throughout the court proceeding, ultimately becoming official crown wards (where the State (province of Ontario) has final custody of the child until adoption (if applicable). In summary, the term Society wardship is applied when children remain in foster care until a final disposition of the proceedings (i.e., until they are returned to parents/kin or until they are made crown wards). For more clarification see “Status Review Hearings”.
KIN AND ALTERNATE PLANS:
In child protection cases where a parent has clearly not been able to demonstrate that they would be suitable to be a caregiver of their child going forward, they still have the option of presenting a kin or alternate plan instead of crown wardship and/or adoption. Grandparents, Aunts, Uncles, Brothers, Sisters and close family friends are all examples of alternate people that could bring forward a plan for your child who is involved in a child protection case. The same legal test of whether this plan would be in the child’s best interest is applied. Generally speaking, extra weight is afforded to kin plans given that one of the purposes of the Child and Family Services Act in child welfare cases is to maintain the family unit as best as possible. In these cases, the family member or friend would technically adopt the child or obtain a custody order. The benefit of a kin or alternate plan is that should a kin plan be approved of by the court, then the parent has a good chance to still be a part of the child’s life through access or other terms such as openness.
STATUS REVIEW HEARINGS:
A status review hearing is usually brought by the CAS after a final order has been made for society wardship or a supervision order, in a child protection case. These occur with supervision orders or society wardship orders. In these cases, usually after 6 months of an order (placing the child with either a parent or kin subject to supervision or in foster care) the matter is brought back to court for review and to proceed with the case to work towards final closure of the case. Explaining a child protection case can be confusing because while final orders can be made by the court, they are in reality only temporary orders until either the Child protection agency terminates and withdraws the proceeding against the parents or the child is fully adopted. Even with a final crown wardship order where access was ordered, a status review hearing could reopen that case. Other than appeals, a crown wardship case that orders adoption is a final order with no possibility of reopening. A status review hearing is also sometimes brought by the Child protection agency to stop say a 6 month supervision order that has allegedly gone poorly. In that case, a status review hearing would be brought early forcing the matter to court with a motion to apprehend the child notwithstanding the supervision order. Parents can also bring status review applications of their own in certain cases.
TEMPORARY CARE AND CUSTODY HEARINGS:
A child protection agency has in many ways, more power than the police. They can apprehend a child and not have to justify the apprehension for 5 days, until they are finally forced by law to have the matter brought before a court of law. By the 5th day, a motion must be brought whereby the child protection agency would attempt to justify the apprehension and continued apprehension. Unfortunately, these hearings usually get adjourned by Parents as they have just been served with legal documents that they need to carefully respond to or to obtain legal counsel. In the meantime, until these things occur a without prejudice order is made with terms in respect to the child. For example, the child may remain in foster care with access terms until the argument of the temporary care and custody hearing occurs. It is usually recommended that the parents come extremely prepared for such a hearing as it is a very advantageous one whereby the burden of proof lies with the child protection agency. It is not uncommon for the hearing and motion to be adjourned for a few weeks for parents to retain counsel and mount a proper response and defence. However, waiting too long can also backfire at times whereby a status quo is established. Also, at some point the burden of proof may shift to the parent. In such cases, it is advisable for parents to speak to legal counsel as soon as possible.